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Jewish World Review May 17, 2001 / 24 Iyar, 5761

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Consumer Reports

Keep your laws
off my Judiciary! -- AS PART of the ongoing war preparations for the next Big One -- the battle over the courts -- liberals have been denouncing President Bush for injecting politics into the process. They insist they oppose his court nominees across the board, actual and potential, because Bush is engaging in "ideological politics" with the judicial selection process.

Thus, The New York Times recently ran an article by a Stanford history professor plaintively pleading for an independent judiciary, asking: "(W)hat happens to that concept when the appointments process becomes an extension of ideological politics by judicial means?"

Apparently, the way to stop politicizing the courts is for conservatives not to interfere with liberals politicizing the courts. Roll over and let liberals keep their invented "constitutional rights." These include the constitutional right to privacy (the right to stick a fork in a baby's head), the Flynt Amendment (prohibiting all speech except that which is pornographic, blasphemous or criminal conduct), and the historic separation of church and state (requiring that religion be stamped out of the schools, the courts, the public square and the churches).

The problem with the professor's argument is that it's not "the appointments process" that uses "judicial means" to engage in ideological politics. Only the judiciary can use "judicial means" to do anything. The appointments process is just the appointments process. The way to keep politics out of the courts is to keep politics out of the courts. A good start would be for judges to issue rulings grounded in the Constitution rather than the latest ACLU circular.

Here is how some of Bill Clinton's judicial appointments avoided politicizing the courts by closely following the language of the Constitution.

Judge Diane Wood, the centrist judge Clinton put on the U.S. Court of Appeals for the 7th Circuit, found that failure to provide a prisoner with a smoke-free environment constituted cruel and unusual punishment. Another centrist Clinton choice, Judge Robert Henry of the 10th Circuit Court of Appeals held that it was cruel and unusual punishment for the state to deny sex-change hormone treatment for a transsexual prisoner.

Before Clinton promoted him to the 9th Circuit Court of Appeals, District Court Judge Richard Paez struck down a law against aggressive panhandling at ATMs, outdoor cafes and other specified public places. Los Angeles had passed the law after a man was stabbed to death when he refused to give a beggar 25 cents. Under the ordinance, violators were to be given a formal warning, then a fine. Only third offenses would rank as so much as a misdemeanor. Judge Paez ruled that the law was an unconstitutional restriction on free speech in violation of the Flynt Amendment.

As a sitting federal judge, Judge Paez denounced Proposition 187, the California initiative that barred illegal aliens from receiving state-funded benefits, calling it "discrimination and hostility" against the "Latino community." Paez evidently uses "Latino community" as a synonym for "welfare queens." He also denounced Proposition 209, the California anti-discrimination initiative that tracks the language of the Civil Rights Act of 1964, calling it an "anti-civil rights initiative."

Another Clinton centrist, Judge M. Blane Michael on the 4th Circuit Court of Appeals, has concluded that judging employees on the basis of "performance" constitutes discrimination. That's really true.

In response to feminist squawking at Virginia Commonwealth University -- a school with no history of gender discrimination -- the university ran a regression analysis proving that female faculty were paid less than male faculty. To reach this result, the analysis had to exclude merit as a factor in the analysis (e.g., number of scholarly papers published, years teaching since earning Ph.D.). Only by excluding merit did an "unexplainable" gap miraculously appear between female and male faculty's salaries.

VCU responded to the injustice by awarding an across-the-board pay raise to all women faculty -- including at the school of nursing where there were no male faculty members who could possibly have been gypping the women all those years.

Male professors at VCU sued the school for gender discrimination and, not surprisingly, won. But Clinton centrist Judge Michael dissented from the 4th Circuit's opinion on the grounds that even IF the salaries could be justified on the basis of performance, "the only appropriate conclusion to be drawn is that performance factors improperly favor one sex over the other." Merit is a male concept.

Another Clinton centrist appointment was A. Richard Caputo, whose principal qualification was being the father of Hillary Clinton's press secretary, Lisa Caputo. Given the competition, he is surely no worse than the average Clinton appointee. But after all the shrieking about how eliminating the ABA from the process would lead to "patronage" appointments of lesser-quality judges, it is worth noting that Caputo was noticeably less qualified than the average appeals court nominee.

Good thing the ABA was involved in the process. Otherwise judicial selection might have been political.

JWR contributor Ann Coulter is the author of High Crimes and Misdemeanors: The Case Against Bill Clinton. You may visit the Ann Coulter Fan Club by clicking here.

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